The Dissent of the Governed by Stephen L. Carter

The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty
by Stephen L. CarterHarvard. 167 pp. $19.95

In many ways, Stephen L. Carter, a professor of law at Yale, embodies the rival impulses now at work in American liberalism. On the one hand, he has shown himself to be keenly aware of the social and cultural damage wrought under the liberal banner. His first book, Reflections of an Affirmative Action Baby (1991), eloquently described the stigma that attaches to those blacks, like himself, who have benefited from racial preferences. His second, The Culture of Disbelief (1993), was the work of a believing Christian weary of the hostility shown by liberal American elites to all but the most private expressions of religious faith. More recently, in books like Integrity (1996) and Civility (1998), he has bemoaned our ever-sinking standards of conduct and character.

Yet, on the other hand, for all his readiness to sound such themes, Carter has been reluctant to endorse the reforms that seem naturally to flow from them, declaring himself either an agnostic on questions of policy or an anguished friend of the status quo. This tension, between rightly identifying problems and offering responsible solutions to them, is very much on display in his latest work, a slender volume based on his 1995 Massey lectures at Harvard.

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Carter begins by taking a second look at the Declaration of Independence. What really agitated the American colonists, he claims, was not their lack of say-so in the British regime (usually considered the heart of the dispute), but rather the king’s open indifference to their grievances. As the Declaration memorably puts it, “In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury.” On this view, the American Revolution was sparked by a “failure of dissent”—that is, by dissent ignored and rebuffed.

Heeding this lesson is especially urgent now, Carter argues, because we too face a looming problem of “disallegiance.” If the villain in 1776 was an unresponsive monarch, today it is “the project of liberal constitutionalism,” which aims to use federal power to create a single, nationwide regime of rights. Though Carter acknowledges that this effort has helped secure, among other things, the rights of blacks, he criticizes its “totalizing” ambitions. More specifically, he worries that the various agents of liberal constitutionalism, in their unyielding promotion of universal values, have deeply alienated the country’s religious believers.

Particularly troublesome, Carter maintains, has been the Supreme Court. In a string of First Amendment cases dealing with matters as diverse as prayer in the public schools, wearing a yarmulke in the armed forces, and the use of peyote in Indian religious rites, the modern Court has shown scant interest in accommodating the practical needs of the devout. Almost as vexing to believers, the dominant voices in our public discourse now reject out of hand any argument that takes faith as its starting point.

Such secular absolutism, Carter observes, is a fairly recent development among liberals. While today it spares them from having to grapple with the arguments of anti-abortion or school-choice advocates, in days past it would have kept them from breaking bread with the irreducibly Christian Martin Luther King, Jr., and with Biblethumping abolitionists.

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Carter hastens to say that he does not necessarily take the side of the religiously aggrieved in these disputes. His point is that the contest has become lopsided, and thus dangerous. Communities and families feel robbed of the ability to “preserve their narratives,” to adhere to the beliefs that help them “make sense of the world.” More and more, they find themselves confronted by a stark choice: “follow the law or follow your God.” If we are to avoid outright conflict, it is imperative, says Carter, that we discover a way to make room for the struggle of the devout to “serve more than one master.”

To this end, he proposes several reforms for the courts. At the most general level, he would like to see judges interpret the religion clauses of the Constitution more “responsively,” that is, by going beyond the letter of the law to take into account the “moral instincts” of their fellow citizens, especially those who, in the fashion of the Declaration, have made known their discontent through “repeated petitions.” As for cases in which citizens openly violate the law in the name of religious duty—and here Carter boldly cites the example of the anti-abortion group Operation Rescue—judges should at least give them a chance to argue their cause. If a jury then wishes to “nullify” the charges against them, so be it.

For Carter, the American “sovereign” (as he incessantly calls the U.S. government) has long dealt too harshly with those who make the difficult choice to stand apart on account of religious conviction. Such hostility is both self-destructive, turning “disobedients” into “disallegianists,” and ultimately shortsighted. After all, he concludes, it is “precisely through its ability to understand the motives and meanings of dissenters” that a democracy such as ours “often achieves moral progress.”

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There is much good sense in The Dissent of the Governed—too much, one suspects, for its original Harvard audience, whom Carter seems to have gone out of his way to provoke. (“Born-again Christians are woefully underrepresented at the nation’s elite campuses,” he puckishly observes, “but when was the last time students or faculty organized to demand that more be hired?”) And there is also much to praise in his basic diagnosis of the discontent that has been bred by the overreaching of the federal government, particularly the courts.

But if Carter is right to point to liberal constitutionalism as a problem, his solutions to that problem unfortunately partake of the same habits of mind that brought us to this pass in the first place.

Carter wants judges to be more sensitive to the likely reception of their rulings among religious dissenters. But are judges, in the isolation of their chambers, either equipped or authorized to do this? And do we really want to give them yet another excuse to enlarge their ever-widening domain? Still more disturbing is the protection that Carter wishes to extend to those who feel compelled by faith to break the law. Are we really to start down the road toward yet another new class of rights, this one designed with the very purpose of disrupting public order?

As Carter correctly notes, religious dissent does not always fit neatly within the confines of the law; in this connection he invokes to powerful effect Dr. King’s “Letter from Birmingham City Jail.” But today’s dissenters are not nearly so deprived as yesterday’s of lawful means by which to seek their ends. In this light, Carter’s “reconstruction” of the Declaration of Independence is especially wrong-headed, leading him to cast religious Americans in a struggle against a distant, unfeeling federal “sovereign,” lacking only the ermine and purple of George III.

It bears repeating, however, that in America the people are sovereign. While Carter wrings his hands over an imminent crisis of legitimacy, most of those for whom he claims to speak have already been expressing their displeasure, not in “disallegience” but in the much healthier form of political activism. Carter, by contrast, is reluctant to have religious dissenters take to the hustings. A “continuing moral witness,” he writes, “is always superior to entrance into electoral politics.” This, alas, is moralistic grandstanding at its worst—and, practically speaking, an invitation to marginalization and extremism.

The real problem for Carter is that the political agenda embraced by his would-be constituency is a conservative one; here as elsewhere in his writings, he will not allow himself to keep such company. Though an ostensible supporter of autonomy for local communities, for example, he dismisses the revival of federalism now under way as “a celebration of unwilled and arbitrary geographic divisions.” And for someone so familiar with the repercussions of judicial activism, he has little use for strict construction of the Constitution, a doctrine that would have slowed, if not prevented, the Supreme Court’s reckless imposition of a single national standard on so many inflammatory issues, from abortion to gay rights.

Even when Carter’s constitutional views are more consonant with his premises, he cannot take the step necessary to complete the circle. Thus, though publicly-funded vouchers for religious schools pass First Amendment muster in his view, he pointedly withholds any endorsement of the policy itself. Time and again, one encounters some version of his all-purpose disclaimer: “I am not actually advocating. . . .”

None of this is to deny Stephen Carter’s important contribution to a heated, ongoing debate. The ministry he has chosen is a laudable one, instructing liberal sectarians in the true demands of their creed of tolerance. On these fundamental matters, his is plainly a voice for reason. Regrettably, it is not also a voice for change.